Doughaili v Barua Pty Ltd

[2006] NSWSC 1374

CITATION:	Doughaili v Barua Pty Ltd [2006] NSWSC 1374
HEARING DATE(S):	06/12/2006
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	12/06/2006
DECISION:	Hearing vacated. ECM Court closed. Costs reserved. Matter stood over before Registrar.
CATCHWORDS:	PROCEDURE - Miscellaneous Procedural Matters - Adjournments - Matter conducted in ECM Court - Parties sign consent orders vacating hearing - Whether matter should be adjourned into open court - Whether parties at liberty to make such a decision - Whether efficient disposal of court business under the Civil Procedure Act 2005, s 57(1)(b) and the efficient use of available judicial resources under s 57(1)(c) should be taken into account - Key witness booked to go to Mecca - Whether justice between the parties outweighs court administration considerations - Changed instructions by plaintiff to oppose application and seek order for costs thrown away
LEGISLATION CITED:	Electronic Transactions Act 2000 Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005
PARTIES:	Mona Doughaili - Plaintiff Barua Pty Ltd - Defendant
FILE NUMBER(S):	SC 4093/06
COUNSEL:	Mr A Tudehope - Defendant
SOLICITORS:	Mr G Raffell, Brown & Partners - Plaintiff Paul C Fabian & Co, Solicitors & Attorneys - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 6 DECEMBER 2006

4093/06 MONA DOUGHAILI v BARUA PTY LTD

EX TEMPORE JUDGMENT

1 Directions in this matter were being conducted in an ECM Court, an online court in which electronic communication is sent and received by means of an electronic case management system established under the Electronic Transactions Act 2000, s 14B. (See: Uniform Civil Procedure Rules 2005, Pt 3).

2 The parties signed consent orders vacating a two day hearing commencing on 14 December 2006 and asked the Court to make the order.

3 I adjourned the matter from the ECM Court into open court.

4 Parties to a matter set down for trial are not at liberty to decide by consent that the hearing should be vacated. The court has duties with respect to the efficient disposal of its business and the efficient use of available judicial and administrative resources under the Civil Procedure Act 2005, s 57(1)(b) and s 57(1)(c). It is not the right of the parties to decide that they will not go to trial at the appointed time.

5 The efficient disposal of the business of the court and the efficient use of available judicial resources dictates that the hearing of this matter should take place on the appointed days unless the parties convince the court that it is in the interests of justice between them that the matter be adjourned and that consideration outweighs court administration considerations.

6 The basis for vacating the hearing is that a material witness of the defence has made bookings to travel to Mecca. He feels obliged to maintain that booking, both for monetary reasons and for religious reasons. He is the only witness that the plaintiff requires for cross-examination.

7 Having signed consent orders agreeing to the vacation of the hearing and that costs should be reserved, the solicitor for the plaintiff has now received changed instructions. The plaintiff opposes the application and seeks an order that her costs thrown away by the vacation of the hearing be paid by the defendant.

8 It seems to me that it is in the interests of justice between the parties that the hearing be vacated. The witness is a material one, so far as the defence case is concerned and, as I have said, he is the only person the plaintiff wishes to cross-examine. In those circumstances, it does not seem to me appropriate to force the parties to trial in the absence of this key witness. That consideration outweighs any concern for efficient court administration.

9 The plaintiff having previously consented to an order that costs be reserved, I think it inappropriate to make the order now sought by her. It will still be open to her to seek such an order from the trial judge if I reserve costs.

10 I vacate the hearing before me for two days commencing on Thursday 14 December 2006. I close the ECM Court. I stand the matter over before the Registrar at 9.30 am on Thursday 14 December 2006. I reserve costs.

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